November 12, 2008

Professor Daniel Markovits on His New Book

Thanks to Andrew Perlman and the other editors of the Legal
Ethics Forum for giving me this chance to say something about my new book, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age. It’s a treat to have a chance to write
directly to this audience and in this forum.

The book can speak for itself, and a summary seems anyway
out of place here, so rather than just reprise what I’ve written before, or
make a special pleading for my own views, I’ll say something about the broader
problems that inspired me to write the book. Specifically, I will identify three challenges that I believe
scholarship in legal ethics must address going forward. These concern: (1) the relationship between
legal ethics and political ideas, (2) the ethical inner lives of lawyers, and
(3) the appropriate method for ethical arguments about lawyering to adopt.

Begin with politics. The signal achievement of the last generation of (especially
philosophical) scholarship in legal ethics has been to bring moral philosophy
to bear on lawyers’ professional conduct in a serious way. Sophisticated moral argument shows that
lawyers’ ordinary moral personalities shine through their professional roles,
so that the ordinary moral obligations that all persons have to pursue what is
right and true cannot be eclipsed by either role-ethics or the simple division
of labor arguments associated with the classical adversary system excuse. Serious moral analysis therefore almost
invariably concludes that lawyers may display much less aggressive partisanship
than conventional accounts of adversary advocacy recommend. The formal attributes of the lawyer’s role
cannot plausibly offer the resistance to ordinary moral evaluation that
conventional accounts of the lawyer’s role morality propose.

This is all quite right, as far as it goes. But the lawyer’s professional role has
substantive as well as formal elements, which is to say that lawyers do not
occupy just any role but rather one that places them at the center of political life. And the political content of the lawyer’s
professional conduct might require lawyers to resist ordinary morality in ways
in which occupants of other, formally similar roles should not. Certainly politics – at least in open, cosmopolitan,
and hence pluralist societies – requires a kind of moral restraint very much
like the restraint that partisan lawyers are called to display. This is most directly captured by the thought
that public reason places limits on citizens’ comprehensive moral engagements
with political affairs, but other less self-conscious strands of liberalism
employ similar ideas. Accordingly,
insofar as lawyers are intimately and directly involved in the administration
of politics, it is natural to suppose that they incur analogous duties to
restrain their own moral judgments (concerning right and truth). These duties grow not out of the formal
role-ness of their professional lives but rather out of the substantive place
that lawyers occupy in the larger social and political order.

The scope of lawyers’ political duties, and their
relationship to traditional conceptions of lawyerly partisanship and fidelity
to clients, is an open question. Some
contemporary legal ethicists – most notably Brad Wendel – think that lawyers’
political function requires them to be true to the law rather than to clients. I believe – as I argue in the book – that lawyers can contribute to
political legitimacy only if they pursue a much more traditional client-centered and partisan
professional self-conception. The difference
between these positions turns on deep and complex questions concerning the
nature of political legitimacy. In
particular it turns on whether (as Wendel believes) democratic law-making can
carry the burden of legitimating political power on its own or whether it must
instead (as I believe) be supplemented by a practice of law-application, or
adjudication, constructed to serve as a separate, free-standing legitimating
force. I explain why I find the second
approach persuasive in the book, but that is in a way beside the point. I am much less confident in the particular
manner in which I embed legal ethics in politics than in the general
proposition that an adequate account of legal ethics must take politics much more
seriously than the familiar views do. And taking politics seriously cannot avoid having substantial
implications for lawyers’ first-order professional duties.

Although the political emphasis of these arguments is novel,
the general style of the argument – namely, the construction of an impersonal,
external evaluation of lawyers’ practical lives – should be familiar to legal
ethicists. The book’s second central
preoccupation departs dramatically from such external accounts to address the
inner ethical lives of lawyers. I
observe that the positive law, both in its doctrinal details and in its genetic
code (arising out of the structural separation between advocate and tribunal),
requires lawyers to display professional vices that have familiar names: specifically, that it requires them to betray
their personal judgments of truth in a manner that amounts to lying and to
betray their personal sense of fairness in a manner that amounts to
cheating. I then ask what it is like –
not psychologically but ethically – to live subject to the professional duties
of self-effacement (or negative capability, as I call it) that govern lawyers’
professional lives and to the vices that these duties call on lawyers to
display. I argue that this
self-effacement threatens lawyers’ integrity, and I develop a philosophically
articulate account of the nature of integrity and of the proper place for
considerations of integrity in all-things-considered practical
deliberations. Finally, I propose a
renovation of role-morality, reconstructed as a complement rather than a
substitute for ordinary moral argument. I claim that even though philosophical legal ethicists are rightly
dismissive of suggestions that role morality can insulate lawyers from the
moral requirements that are common to universal humanity, role can help lawyers
who satisfy these requirements to sustain their integrity in circumstances in
which ordinary morality places their integrity under threat.

The details of these arguments may be found in the book, but
my principal purpose here is once again to recast the problem of legal ethics
rather than to promote my own peculiar solution to it. And I am again more confident that an
adequate philosophical reconstruction of lawyers’ ethical lives must take into
account their own perspectives on the tensions that their professional
obligations produce in them than I am that the particular diagnoses of these
tensions – involving integrity and its philosophical concomitants – that I
elaborate in the book are correct.

The book’s third innovation is
methodological rather than substantive but not, I think, any less important for
this emphasis. Most legal ethics, and indeed most applied ethics more
generally, tends towards casuistry: it begins by identifying general principles
of value and right action and then applies these principles to a particular set
of facts in order to generate prescriptions about what should be done. I am dubious of this approach. To begin with, the general principles from
which casuistic arguments in applied ethics begin tend to be too simplistic,
and the facts to which the arguments apply these principles tend to be too
stylized, for the casuistry to be persuasive. Moreover, it is probably not
realistic to expect philosophy to have such mechanical and immediate regulative
implications for ethical life as casuistry supposes. Ethics – at least in the sense of living well
– simply is not a technical subject in the way casuistry presumes but instead
involves complexities and offers possibilities for practical and indeed ethical
creativity and judgment that casuistic approaches to applied ethics cannot
encompass.

This is not to claim (which would
be absurd) that philosophy is irrelevant to ethics. But although philosophers, and
characteristically philosophical forms of thought, do have distinctive
contributions to make to ethical life, their contributions are primarily interpretive and reconstructive rather than directly regulative. The task of
philosophical ethics is therefore primarily to elaborate what is rather than to
command what should be. Of course, a
philosophical advance in understanding a form of ethical life may lead to
changes in that form of life, as participants and indeed outsiders adjust their
engagements with that form of life in light of how they have come to understand
it. But the choices involved in actually
making these adjustments have an independent
ethical content of their own, involving ethical creativity and judgment. They
are not entailed by any direct application of philosophical understanding to
ethical life.

Whereas almost all traditional
philosophical legal ethics employs one or another form of casuistry, the
questions I set myself in the book accept this account of the limits and
possibilities of philosophical ethics: I
abandon casuistry entirely in favor of interpretive reconstruction. Thus, instead of evaluating the positive law
with a direct eye to reform, I take the basic outlines of adversary advocacy
for granted and embark on a detailed interpretive engagement with doctrine in
order to elaborate the legal, ethical, and political values and forms of life
are immanent in this professional regime. (This, by the way, makes the book useful for teaching the positive law.)

Moreover, this
commitment in favor of interpretive over regulative approaches to applied
ethics works itself inward in the book’s argument, into the details of its
engagement with the positive practice of adversary lawyering. Most immediately, I resist the temptation to
focus discussions of legal ethics on extraordinary cases – for example, cases
in which lawyers present an alibi defense that they know to be false, keep a
life-threatening secret, intimidate an adverse party by investigating her
sexual history, or even bring a false murder prosecution – preferring instead
to emphasize the ethical questions that arise in adversary legal practice quite
generally, in the banal conduct of lawyers’ workaday professional lives. Sensational cases may be suited to casuistry,
because they usefully support intuitive tests of the limits of justified partisanship. But exceptional cases are much less useful
for elaborating a philosophical reconstruction of the constant core of
adversary advocacy rather for fixing its variable boundaries. In order to know what a practice is really
like, it is better to ask what it is ordinarily like rather than to fixate on
what it becomes as it starts cracking under pressure. Sensational cases, which are the main-stays
of most discussions of legal ethics, are attention-grabbing, to be sure. But it is a mistake to emphasize them: just as great cases make bad law, so they
make bad legal ethics.

Comments

Thanks to Andrew Perlman and the other editors of the Legal
Ethics Forum for giving me this chance to say something about my new book, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age. It’s a treat to have a chance to write
directly to this audience and in this forum.

The book can speak for itself, and a summary seems anyway
out of place here, so rather than just reprise what I’ve written before, or
make a special pleading for my own views, I’ll say something about the broader
problems that inspired me to write the book. Specifically, I will identify three challenges that I believe
scholarship in legal ethics must address going forward. These concern: (1) the relationship between
legal ethics and political ideas, (2) the ethical inner lives of lawyers, and
(3) the appropriate method for ethical arguments about lawyering to adopt.